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4 Aug 2021 Company doctor in a time of corona: extra honesty required of employee during telephone consultation

Employee is rightfully dismissed with immediate effect because during her incapacity for work she organized commercial bingo games, while she said she was incapable of doing anything, and because she "lied" to the employer and the company doctor about her workload. What are the facts and the legal framework?

Facts

Maral Coatings develops and produces paint for SMEs. On May 19, 2019, the employee started working for Maral Coatings for an indefinite period of time. On January 11, 2021, the employee dropped out due to knee problems. On January 21, 2021, the company doctor spoke with employee by telephone. The opinion of the company doctor shows, among other things, that it is expected that as of February 1, 2021, employee will again have possibilities to reintegrate in the morning, approximately 2-3 ¡hours at a time. Among other things, on January 27, 2021, Maral Coatings spoke with employee by telephone and informed her of the company doctor's advice to start reintegration as of February 1, 2021. During that conversation, the employee indicated that this was only an advice and that she was not capable of resuming work. On February 1, 2021, the employee did not appear at work. On February 10, 2021, the company doctor had telephone contact with the employee. The problem analysis drawn up by the company doctor in response to this stated that the employee was now also experiencing cloudy/obstructive working relationships. From a medical point of view, the company doctor has no objections to starting with a return to defined tasks. Maral Coatings contacted employee by telephone for feedback. In response to Maral Coatings' question as to what employee does throughout the day, employee indicated that she cannot do anything, in part because of her medication use. On March 16, 2021, Maral Coatings found out through the employee's work PC that on February 13, 2021, the employee had set up a Facebook page aimed at selling beauty products, and on February 22, 2021, a Facebook page whereby these beauty products were raffled off via a digital bingo. By e-mail message dated March 18, 2021, Maral Coatings invited employee to an interview at the office on March 19, 2021 at 12:00 p.m. Employee declined that invitation due to, among other things, her medication use. By letter and e-mail message dated the same date, Maral Coatings summarily dismissed the employee. Employee primarily requests that the instant dismissal be annulled effective March 19, 2021, and that Maral Coatings be ordered to allow her to return to her usual work. She also requests that Maral Coatings be ordered to continue paying wages. In the alternative, the employee requests that Maral Coatings be ordered to pay the compensation for unlawful termination, the transitional compensation and an equitable compensation. By way of counterclaim, Maral Coatings claimed the fixed compensation pursuant to Section 7:677 of the BW.

Judgment

It does not appear to be (any longer) in dispute between the parties that the employee in any case presented bingo's on 16, 18 and 19 March 2021. In this respect Maral Coatings has brought a USB stick in the proceedings with four films on it. From these it can be deduced that on both March 18 and 19, 2021, the employee organized two bingo's for beauty products. It can be admitted to Maral Coatings that the impression made by the employee on the videos, although she is not (always) fully in the picture, does not at all correspond to the image that the employee has sketched of herself towards Maral Coatings and the company doctor. After all, according to the employee, she was allegedly heavily medicated and was in fact, according to her own statement, not capable of doing anything except lying dazed on the couch (or in bed) for most of the day. In the opinion of the Subdistrict Court, the employee absolutely does not make such an impression on these videos. The Subdistrict Court considered that the impression it got of the presentations on the videos by the employee was one of concentration, speed, focus and accuracy. It seems that the employee was able to do (much) more than she stated to Maral Coatings and the company doctor. To that extent, the Subdistrict Court therefore considers it proven that the employee has deliberately painted a different, much less rosy, picture to Maral Coatings and the company doctor with regard to her capacity to work. In an objective and subjective sense, this constitutes an urgent reason for immediate dismissal, certainly if it is borne in mind that, as a result of the corona crisis, the employee almost only spoke to the company doctor and Maral Coatings by telephone. In the opinion of the Subdistrict Court, this places an additional obligation on the employee to bring forward her state of health as completely and truthfully as possible. In the opinion of the Subdistrict Court, the trust that Maral Coatings and the company doctor should be able to have in the statements of the employee for that reason has been seriously violated. The Subdistrict Court did not find (sufficient) evidence that the dismissal was not immediate. Maral Coatings has argued in this respect, without being refuted, that it was confronted with the activities of the employee for the first time on 16 March 2021. Witness the letter of dismissal dated March 19, 2021, Maral Coatings conducted further investigations after its discovery, after which it proceeded to issue the instant dismissal on March 19, 2021. It follows from the foregoing that the primary application for annulment of the summary dismissal, reinstatement and continued payment of wages is rejected, as well as the employee's subsidiary application for the award of compensation for wrongful termination. Although an urgent reason does not automatically coincide with seriously culpable acts or omissions on the part of the employee, the facts and circumstances constituting the urgent reason in this case also constitute serious culpability. This means that the transition allowance is not due and that the employee's request is rejected. Now that the Subdistrict Court has already ruled that there is an urgent reason and that the instant dismissal was legally valid, there is no question of a termination in violation of Section 7:671 of the Dutch Civil Code. The request for payment of fair compensation was therefore denied. Maral Coatings claims the fixed compensation pursuant to Section 7:677 of the Civil Code on good grounds, but it has already set this off, so that this request is rejected.

Summary

In times of corona the consultations of the company doctor are often by telephone. This often makes it difficult to properly assess an employee's work (un)fitness, especially if the employee is not acting in good faith. Are you facing a similar situation and would you like to know what the legal possibilities are? SPEE advocaten & mediation would be happy to assist you.

SPEE advocaten & mediation Maastricht

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